International human rights law has specific requirements for the protection of authors and users of intellectual works. Article 27 of the Universal Declaration of Human Rights (UDHR)1 and Article 15(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)2 protect ‘the moral and material interests’3 of authors (hereinafter authors’ moral and material interests) and the human rights of individuals to ‘participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’4 (hereinafter users’ rights in culture, arts and science). Furthermore, by virtue of the interdependence and indivisibility of human rights,5 authors can derive protection from other human rights and freedoms, such as the right to freedom of expression and the right to property.6 Likewise, users can support their rights to access, use and share intellectual works by relying on their freedom of expression and their human right to education.7
Given the indivisibility and interdependence of human rights, the human rights of authors and users are presumed to be compatible as codified in international human rights instruments. Nonetheless, the practice of these rights by individuals, their implementation by parliaments, and/or their adjudication by courts may result in one (or more) of these rights intruding on the other(s). In this case, international human rights law posits balance as the solution for managing the relationship between authors’ and users’ human rights, and between these two sets of rights and the whole body of international human rights. In General Comment No. 17, the Committee on Economic, Social and Cultural Rights (CESCR) has explained that authors’ international human rights ‘must be balanced’ with the other international human rights recognised in the ICESCR, including users’ international human rights.8 Also, the High Commissioner of Human Rights has relied on the temporary nature of intellectual property rights and their traditional utilitarian justifications to conclude that the balance that international human rights law strikes ‘between public and private interests’9 in intellectual works is ‘one familiar to intellectual property law’10 and thus ‘there is a degree of compatibility between Article 15 [of the ICESCR] and traditional [intellectual property] systems’.11 The High Commissioner has emphasised the role that balance, as an objective of the Agreement on Trade-Related Aspects of Intellectual Property Rights12 (TRIPS), plays in establishing a ‘potential link’13 between TRIPS and international human rights law.14 Yet, the High Commissioner has also identified a number of points in TRIPS that are a source of concern from an international human rights law perspective.15
The High Commissioner’s reliance on the international copyright law’s principle of balance to issue a decree of coexistence between international copyright law and international human rights law is problematic. The principle of balance in international copyright law is not as self-evident as generally perceived. It is ambiguous and is far from being agreed upon as satisfactory within international copyright law, making it a poor candidate to be imported as a viable peacemaker between the two regimes. Second, the High Commissioner has not articulated an independent human rights principle of balance—with clear rules—that can contribute to managing the multifaceted and interrelated tensions resulting from the interplay between authors’ and users’ human rights and which can act as point of reference against which international copyright law can measure its compliance with international human rights norms.
The purpose of this paper is to unfold the complexity surrounding the meaning of balance in international copyright law and present the principle of balance in international human rights law. This should inform a new debate with respect to how to measure the compliance of international copyright law with international human rights law. The paper is divided into five parts: Part II outlines the different human rights approaches to intellectual property law; Part III reveals the ambiguity of the principle of balance in international copyright law; Part IV presents the human rights principle of balance; and Part V is a conclusion.
II. International Human Rights and Intellectual Property: The Rhetoric on Conflict and Coexistence
The relationship between international human rights law and international intellectual property law is complex,16 and for a long time both legal communities paid little attention to this complexity.17 Thus, in 1998, the World Intellectual Property Organization (WIPO), in collaboration with the United Nations (UN) Office of the High Commissioner for Human Rights (OHCHR), organised a ‘Panel Discussion on Intellectual Property and Human Rights’.18 The handful of papers presented in the panel generated a new stream of research looking into international intellectual property law through an international human rights lens.19
The early theme of research on the relationship between intellectual property and human rights focused on finding whether the two systems are conflicting or coexisting.20 Specifically, Resolution 2000/721 declared that an apparent conflict exists between intellectual property and human rights: international intellectual property law, as embodied in TRIPS, ‘does not adequately reflect the fundamental nature and indivisibility of all human rights, including the right of everyone to enjoy the benefits of scientific progress and its applications, the right to health, the right to food and the right to self-determination’.22 Given this incompatibility, the Sub-Commission for the Promotion and Protection of Human Rights reminded governments of ‘the primacy of human rights obligations over economic policies and agreements’.23 The catalyst for Resolution 2000/7 was a joint statement by the Habitat International Coalition and the Lutheran World Federation,24 which urged the Sub-Commission to ‘take concrete actions on TRIP[S]’25, whereby the Commission ‘must reassert the primacy of human rights obligations over the commercial and profit-driven motives upon which agreements such as TRIP[S] are based’.26
Furthermore, several early scholars’ arguments supported the conclusions of Resolution 2000/7. For example, scholars argue that: international intellectual property protection is generally conflicting with the human right to development;27 the strong patent protection over genetically modified crops could undermine the human right to food;28 international patent protection hinders access to medicine and thus is injurious to the human right to health;29 international copyright and patent laws overlook the human rights of indigenous people over their traditional knowledge;30 and copyright law is in conflict with the human right to freedom of expression31 and the human right to education.32
On the other hand, the second view on the relationship between international human rights and international intellectual property law spots a ‘degree of compatibility’33 between the two regimes.34 According to the High Commissioner for Human Rights, this compatibility is ascribed to the similarity of the balance that both systems pursue between the private interests in protecting intellectual works and the public interest in providing access to those works.35 Particularly, in the context of copyright, this balance means giving authors exclusive rights over their intellectual works while simultaneously creating set of exceptions and limitations which enable the public to access those works.36 For example, copyright exceptions and limitations under international copyright law, such as the quotation exception and the expression/idea dichotomy, challenge the claim that a conflict exists between copyright and freedom of expression.37 Similarly, in international patent and trademarks laws, exceptions and limitations to exclusive rights give rise to the claim that the two regimes are compliant with international human rights law.38
The coexistence perspective on intellectual property law and human rights assumes that the principle of balance in international copyright law is clear and imports it to manage the tension between authors’ and users’ human rights. However, given the plethora of meanings of the term balance in international copyright law, this perspective overestimates the maturity of the principle of balance in international copyright law and therefore also overestimates its possible role in international human rights law.
III. Balance in International Copyright Law: The Controversy
One of the reasons for the inherent tension between the protection of authors’ and users’ rights in international copyright law is the absence of an overarching purpose in reconciling both interests.39 National copyright laws have mainly emerged from either the common law tradition of copyright or the civil law system of ‘droit d’auteur’.40 While the first is utilitarian in nature, as it envisages copyright as a mechanism to stimulate copyright holders to produce and disseminate works for the benefit of the public interest, the second sees copyright as the authors’ natural right.41
In 1886, the founders of the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention)42 opted for the natural law argument as a basis for international copyright protection.43 The declared purpose of the Berne Convention was the ‘protection of the rights of authors in their literary and artistic works’.44 However, TRIPS brought a bundle of new objectives and principles to international copyright law. The protection and enforcement of intellectual property rights in TRIPS target the advancement of ‘technological innovation’, ‘the transfer and dissemination of technology’, the benefit of both ‘producers and users’ and the ‘balance of rights and obligations’.45 Subsequent international copyright instruments also refer to balance. The WIPO Copyright Treaty (WCT)46 and the WIPO Performances and Phonograms Treaty (WPPT)47 acknowledge ‘the need to maintain a balance between the rights of authors [and the rights of performers and producers of phonograms] and the larger public interest, particularly education, research and access to information […]’.48 The Anti-Counterfeiting Trade Agreement (ACTA)49 adopts, mutatis mutandis, the objectives and principles of TRIPS including the objective of balance.50
The Oxford dictionary defines the noun ‘balance’ as ‘a situation in which different elements are equal or in the correct proportions’51 and defines the verb ‘balance’ as to ‘offset or compare the value of (one thing) with another’.52 Early on, Lord Mansfield envisaged these meanings as both a function and a purpose of copyright law when he stated:
‘We must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the art be retarded.’53
At first glance, balance resembles a traditional fair and desired allocation of the rights and freedoms of both authors and users over intellectual works.54 It is supposed to be the ideal point at which neither users’ enjoyment of intellectual works discourages authors from creation, nor authors’ exclusive rights hinder that enjoyment.55 This includes the users’ ability to utilise available intellectual works to produce additional new works.56 Users have traditionally relied upon this balance to claim rights over intellectual works, and both lawmakers and courts have occasionally entertained these rights by relying on the normative support of the term balance.57 Therefore, the reference to balance in TRIPS has denoted a shift of international copyright law from being solely the law of authors into being the law of both authors and users.58
Balance is now a cornerstone concept in the dialogue surrounding international copyright law and policy. However, TRIPS, the WCT, the WPPT and ACTA do not provide a unified definition of balance and the World Trade Organization (WTO) case law has not played the needed role to clarify the meaning of balance or how balance may be achieved. The Appellate Body in Canada–Term of Patent Protection emphasised that Article 7 and Article 8 of TRIPS ‘still await appropriate interpretation.’59 Yet, in Canada–Patent Protection of Pharmaceutical Products60 the panel briefly identified two types of balance in TRIPS. The first type of balance exists in the bundle of the rights and obligations in TRIPS’s provisions resulting from the deal struck by its negotiations, such as in Article 28,61 specifying the rights conferred by a patent.62 The second type of balance results from Member States’ implementation of TRIPS’s provisions by utilising its flexibilities to an extent that does not renegotiate the first mentioned balance.63 In this case, the challenged flexibility was the proper interpretation of the scope of Article 30 of TRIPS, which allows introducing exceptions to patent protection ‘provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties’.64
In scholarship, there is a controversy over balance’s meaning and role in international copyright law. One view denies balance’s existence and role as a model to manage authors’ rights and users’ rights in international copyright law due to the power inequality between copyright holders in the developed world and users in the less-developed world.65 On the other hand, there is wide acknowledgement of the importance of balance in international copyright law despite its complexity.66 Yet, the amount of balance required is not self-evident and needs identification in international copyright law. In this regard, Professor Daniel Gervais argues that a number of balances need to be struck not only within the international copyright law regime but also within a ‘copyright whole’.67 The copyright whole would include balancing between copyright rights and other rights with which it is ‘sparring’ and which are regulated by other areas of the law, such as the right of free expression, the right to privacy, the right to access to knowledge and the right to development.68 For Professor Graeme Dinwoodie, however, balance in international copyright law is the preservation of States’ autonomy in designing their national copyright regimes in light of their socio-economic objectives and the minimum standards of protection required by international copyright law.69 This form of balance is not satisfactory for public domain advocates who argue that TRIPS’s exceptions and limitations—the flexibilities which are supposed to preserve States’ autonomy in devising balanced copyright norms—are not of the same type of exceptions and limitations known in common-law copyright regimes, such as fair use.70 Thus, these flexibilities are incapable of enabling balanced copyright protection.71 In contrast, Professor Jane Ginsburg is critical of the latter’s view because it gives the concept of balance the form of ‘cutting back on exclusive rights’72 or emphasising ‘users’ rights’.73 She criticises the European Copyright Code74 on this ground and argues that the traditional split between the civil law and common law copyright traditions have been replaced with ‘the tension between authors’ rights and user rights, with the latter orientation appearing to prevail.’75
In light of the controversy over the meaning of balance in international copyright law, various stakeholders identify and defend varied versions of balance which not necessarily consistent. For example, States interested in strong copyright (or the so-called maximalists)76 have argued that strong copyright protection for authors, especially in the digital environment, is important to create balance in international copyright law.77 On the other hand, some developing countries and public domain advocates (collectively referred to as the Access to Knowledge (A2K) Movement78) have complained that the maximalists are shifting international copyright law away from the proper balance, which implies the advent of a new enclosure movement to lock down culture.79 Therefore, they have called for balancing international copyright protection and enforcement against users’ rights to use intellectual works.80 At the same time, they have opposed any new international norms that may strengthen copyright protection and enforcement. For example, in an intervention made in the WTO TRIPS Council with respect to ACTA, China’s representative has argued that ‘TRIPS-plus enforcement trends in RTAs [regional trade agreements], FTAs [free trade agreements] and ACTA would reduce the balance of interests that the TRIPS Agreement had tried to establish’.81 Similarly, India’s representative has warned that ACTA’s rules have the potential to ‘completely upset the balance of rights and obligations of the TRIPS Agreement’.82
Despite the controversy surrounding balance in international copyright law, the meaning of balance has shaped the framework invoked in international human rights law to manage the tensions between authors’ and users’ human rights or between these human rights and other interests. Historically, the drafters of the UDHR and ICESCR looked at authors’ and users’ human rights through a copyright lens. Advocates of a provision on authors’ moral and material interests in the UDHR and ICESCR advanced a natural law argument similar to that usually invoked to justify copyright. During the drafting of the UDHR, René Cassin, the representative of France, sought to provide authors of literary, artistic and scientific works with a ‘just remuneration for their labour’ and a ‘moral right’ that safeguards the integrity of their intellectual works even after the expiry of the works’ term of protection and their fall into the public domain.83
Similar to the drafting history of the UDHR, the proposal for a provision on authors’ moral and material interests in the ICESCR was influenced by the Lockean and personality views of copyright. For example, Jacques Havet, the representative of the UNESCO, in his proposal of the initial text of Article 15(1)(c) of the ICESCR, argued that the protection of authors’ moral and material interests ‘represented a safeguard and an encouragement for those who were constantly enriching the cultural heritage of mankind’84 and that ‘[o]nly by such means could international cultural exchanges be fully developed’.85
In fact, the supporters of a provision on authors’ interests intended to provide authors’ interests with stronger protection than previously existing international copyright law. They envisaged a regime that: grants authors stronger control over their intellectual works—similar to the control of owners of tangible property—; provides a stronger international enforcement of copyright than the Berne Convention; and goes beyond the minimum protection levels of the Berne Convention and the Universal Copyright Convention (UCC). For example, Argentina, Venezuela, Peru, Brazil and Ecuador endorsed the second paragraph of Article 27 of the UDHR because they perceived it as a move toward internationalising copyright law.86
Taking a similar position, but on different grounds, Campos Ortiz, the Mexican representative, responded to those who had argued that authors’ rights were adequately protected by national and international copyright law regimes by stating that ‘the effectiveness of such protection was at best relative and often non-existent; [therefore,] the United Nations should put its moral authority behind protecting all forms of work, manual as well as intellectual’.87 For him, this meant that the UN should put more effort into the protection of ‘intellectual production on an equal basis with material property’.88 This view perceives authors’ moral and material interests in international human rights law as a tool to strengthen authors’ protection in international copyright law, rather than as a new set of human rights. This goal was also present during the drafting of Article 15(1)(c). For example, the representative of Uruguay cited the lack of the international protection of authors’ rights and the prevalence of piracy as amongst the reasons supporting his proposal for a provision on the protection of authors’ moral and material interests.89
More recently, the CESCR has taken a copyright approach in its interpretation of the content of the authors’ moral interests, which is an essential component of any balance to be struck between the authors’ and the users’ human rights. Following in the footsteps of Article 6bis(1) of the Berne Convention,90 the CESCR has identified the rights of attribution and integrity as the authors’ moral interests.91 However, in addition to these rights, authors should also be entitled to: decide whether they want to disclose their expressions; stop these expressions from circulation when they wish; and to make whatever modifications necessary for maintaining the integrity of their works. Such rights derive support from the same justification of authors’ rights of attribution and integrity, namely the protection of the author’s personality reflected in the intellectual work.92
Furthermore, the High Commissioner for Human Rights concluded that a ‘degree of compatibility’ exists between international human rights and international intellectual property law due to the similarity of the balance that both systems pursue between the private interests in protecting intellectual works and the public interest in providing access to those works.93 This balances authors’ exclusive rights over their intellectual works with a set of exceptions and limitations enabling access.94 Notably, this is the essence of the advocates’ argument regarding the coexistence between international human rights and international intellectual property.95
To sum up, the premise that there is a degree of compatibility between international intellectual property law and international human rights law, due to the similarity between the balance that both intend to achieve by means of the copyright/exception formula, is problematic because balance in international copyright law is not self-evident. Similarly, international human rights law should shape the norms of international copyright law, not vice versa. Therefore, there is a need to clarify the meaning of balance in international human rights law, in the context of the relationship between authors’ and users’ human rights, before comparing it with balance in international copyright law. The following section addresses this issue.
IV. The Requirement of Balance in Managing the Rights of Authors and Users (and other Human Rights) in International Human Rights Law
In their recognition of both authors’ moral and material interests and users’ rights in culture, arts and science over intellectual works, Articles 27 of the UDHR and 15 of the ICESCR do not allude to the existence of any tension between these rights and, accordingly, make no reference to the need for balance. Hence, there is a view that the drafters created a tension in Article 15 of the ICESCR and Article 27 of the UDHR without describing how to resolve it or, alternatively, the drafters may have viewed authors’ human rights over intellectual works as being inferior to users’ human rights.96
The drafters of the UDHR and ICESCR did not intend to give lower weight to authors’ moral and material interests. These rights are fully developed in both form and substance. In form, authors’ moral and material interests in Article 27 of the UDHR and Article 15 of ICESCR are not set out as exceptions to users’ rights. That is, the structure of the articles does not reflect any hierarchy between authors’ moral and material interests and users’ rights in culture, arts and science. In substance, both articles grant authors all the rights accrued from their intellectual works, namely moral and material rights. These rights are as relevant to human dignity as any other human right, such as the right to life or freedom of expression. They also have an essential role in facilitating users’ rights in culture, arts and science. Moreover, there are more persuasive explanations of why the drafters of the UDHR and ICESCR did not address balance as a solution of the possible tension between authors’ moral and material interests and users’ rights in culture, arts and science. First, they saw both sets of rights as compatible, interdependent and reinforcing each other. Neither the UDHR nor the ICESCR requires the protection of authors’ moral and material interests by means of exclusive rights, which is only one way of implementing these rights and the method which most likely causes tension between authors and users. Second, the protection of authors and users in Article 27 of the UDHR and Article 15 of the ICESCR is affected by, and dependent upon, the protection of their respective rights under other provisions, such as the ones relevant to property, freedom of expression, education, non-discrimination, development, and many other rights.97 When all these rights are in play, the mode of their national implementation and the way individuals practice them generate a series of tensions, such as the tension between users’ freedom of expression allowing the dissemination of intellectual works and authors’ moral interests or privacy rights entitling them not to publish their intellectual works. The practical and multifaceted nature of these tensions makes their prediction and solution go beyond the task of the drafters of international human rights instruments, whose balancing mission ends by articulating the different human rights in the international human rights instruments. National parliaments and courts are better equipped to deal with this task in light of the specificities of their respective jurisdictions and the constitutional principles drawn by international human rights law.98
A. The Types of Balance
Jurists have long debated the utility of balance as a metaphor in legal discourse. For instance, Professor Paul Kahn argues that balance as a judicial methodology is unacceptable because it is unable to produce principled justifications for its outcomes and allows the judiciary to intrude in the mission of the State’s political institutions.99 Professor Ronald Dworkin contends that the balance metaphor is misleading because it ‘suggests a false description of the decision that the nation must make’.100 That is, it reflects a society-produced outcome of weighing the conflicting rights or freedoms instead of what justice requires.101 In contrast, Professor Jeremy Waldron explains that individuals’ moral reasoning inevitably involves balancing.102 Pragmatically, Judge Richard Posner argues that in situations where citizens’ rights and freedoms are to be weighed against the nation’s security, the metaphor of balance is ‘the proper way’103 of thinking: ‘[o]ne pan contains individual rights, the other community safety, with the balance needing and receiving readjustment from time to time as the weights of the respective interests change’.104
Philosophers and jurists will always debate the value and fairness of balance and its different forms, yet today it is one of the fashionable terms used by courts to convey legitimacy on the process and outcome of their adjudication on human rights and freedoms.105 In following balance as a methodology or pursuing it as an outcome, courts usually attempt to find normative support in law, whether written or customary. For instance, the ECtHR has described the requirement to strike a balance between the human rights and freedoms of individuals and the collective public interest of the whole community as ‘inherent’ in the ECHR.106 Nonetheless, due to the diverse legal fields in which this concept is utilised, it may refer to different things depending on its application to the specific legal context.107 Therefore, it is important to clarify the meaning of balance with reference to the protection of authors’ and users’ human rights.
The meaning of balance in international human rights law is related to the ordinary dictionary definition.108 As Waldron notes, the metaphor of balance is applied in moral and political discourse ‘when there are things to be said on both sides of an issue, values that pull us in opposite directions’.109 Accordingly, balance first is the equal status that all human rights and freedoms enjoy in international human rights law consequent to their original allocation in their relevant instruments. In this respect, relevance to human dignity is the determinant of what rights or interests are included in the sacred list of human rights. Another important factor is public policy objectives that drafters of international human rights instruments may recognise as limitations on human rights and freedoms.110 As a result, the sum of the rights and freedoms in international human rights law and their limitations is the broad (or initial) balance presumed to have justly been struck in international human rights law.111 Part of this balance, of course, is the rights of authors and users of intellectual works.
Second, balance is the desired and required outcome from the national implementation of States’ obligations under international human rights law.112 International human rights law sets up a broad and balanced framework of legal requirements that States need to comply with by adopting many measures, such as introducing legislation or allocating financial resources. One of the challenges that States face in implementing international human rights law is to give due recognition to all human rights. The protection of all human rights including those of authors and users is one of these challenges. The protection of authors’ human rights by means of copyright usually triggers some tension between the human rights of authors, the human rights of users, as well as other human rights. In this situation, States are required to develop a remedy that achieves a balance between the human rights of authors and the other sets of human rights. In this capacity, balance is practically a requirement of international human rights law. As General Comment No. 17 explains, it is an obligation on the Member States of the ICESCR to ‘strike an adequate balance between their obligations under Article 15, paragraph 1 (c), on one hand, and under the other provisions of the Covenant, on the other hand, with a view to promoting and protecting the full range of rights guaranteed in the Covenant’.113
Third, courts usually apply the technique of balance when adjudicating tensions between the human rights of individuals, such as the tension between individual A’s privacy rights and individual B’s freedom of expression, or between the public interest represented by the State and individuals’ human rights, such as in the tension between the public interest in investigating crimes and the privacy rights of the accused. In these contexts, the technique of balance is supposed to be a neutral judicial method of applying the law by solely interpreting its provisions: courts themselves do not give weight to the litigants’ rights or freedoms, but merely interpret their range and substance.114 Balance or balancing has become a ‘natural methodology’115 for legal interpretation due to its ‘resonance with current conceptions of law and notions of rational decision making’.116
General Comment No. 17 explains that determining the content and scope of authors’ and users’ human rights must be by means of balance,117 which comprises its second and third types. Thus, the implementation of these rights must adhere to a set of rules regulating how their content is interpreted in relation to each other and in relation to other human rights.
B. The Rules of Balance Implementation
Scholars have developed theoretical human rights frameworks for intellectual property protection. Professor Laurence Helfer proposes a human rights framework of intellectual property that would produce an ‘irreducible core of rights’118 or ‘a core zone of autonomy’119 in which the moral and material rights of authors and creators are subject to fewer limitations and exceptions than the ones imposed now by the intellectual property regime.120 Outside this zone stands a set of rights that States need not protect; however, if States choose to protect them, these rights have to be balanced against the other economic, social, and cultural rights (ESCR).121 Helfer argues that a human rights framework of intellectual property may evolve to 1) produce stronger intellectual property rights; 2) impose external limits on intellectual property rights in addition to the known limitations and exceptions; or 3) create a human rights-focused regime which merely recognises intellectual property protection to the extent required to achieve the human rights outcome relating to poverty, health, education, and other aspects of human rights.122
Professor Peter Yu takes Helfer’s framework further by focusing on the tensions generated inside a human rights framework of intellectual property and suggests some means for solving them. He emphasises the importance of identifying the attributes of intellectual property rights that are protected under human rights law and those attributes which are not.123 Further, he identifies two forms of conflict between human rights and intellectual property rights: external and internal.124 The external conflict is between intellectual property law and human rights law, which could be solved by giving priority to the human rights attributes of intellectual property by virtue of the principle of human rights primacy.125 With respect to the internal conflict, between the different rights protected in the human rights instruments, Yu argues that the principle of human rights primacy is inapplicable, but that the conflict may be resolved through three approaches: ‘(1) the just remuneration approach, (2) the core minimum approach, and (3) the progressive realization approach’.126 Under the first approach, users have the freedom to use copyrighted works for the purpose of exercising their human rights, but this does not prejudice authors’ right to seek fair compensation.127 Under the second approach, States would not be in violation of the ICESCR if they offer authors less protection than that required by international copyright law as long as this protection satisfies the ‘core minimum obligations’128 under the ICESCR.129 And under the third approach, subject to the availability of resources, States will endeavour to comply with all their obligations with respect to the protection of authors’ human rights.130
An additional human rights framework, influenced by human rights law jurisprudence, proposes three rules for balance implementation. First, the human rights of authors and users are not absolute. Second, there is no hierarchy between them. Third, both sets of rights are to be interpreted in light of all other international human rights and freedoms.131
1. No Absolute Rights
International human rights and freedoms are generally not absolute. The UDHR recognises their limited nature in Article 29:
- Everyone has duties to the community in which alone the free and full development of his personality is possible.
- In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
- These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.132
Accordingly, States can impose legal limitations on human rights so long as these limitations are not arbitrary, in that they are necessary for the protection of others’ rights or freedoms or other societal values in a democratic society.133 For instance, in criminal law, imprisonment restricts the freedom of movement of the people convicted of murder, but the general and specific deterrence achieved by this punishment, as well as the limitation of the convicted person’s freedom of movement, is necessary for the protection of the human right to life of all the other members of the society. Furthermore, several international human rights instruments include provisions that allow Member States to restrict human rights and freedoms for public policy objectives, such as the protection of public health or national security. For example, paragraph 1 of Article 18 of the ICCPR grants everyone the human right to freedom of thought, conscience and religion, but paragraph 3 of the same article allows prescribed limitations in law necessary for the protection of ‘public safety, order, health, or morals or the fundamental rights and freedoms of others’.134 More profoundly, in situations of emergency, such as war, Article 4(1) of the ICCPR allows Member States to derogate from their obligations under the covenant by taking the necessary measures to respond to the emergency.135 However, the ICCPR includes a set of non-derogable rights, such as the right to life, freedom from slavery and freedom from torture.136
Likewise, the human rights of authors and users are subject to limitations. Authors’ moral and material interests can be ‘subject to limitations and must be balanced with the other rights recognized in the [ICESCR]’.137 These limitations must be prescribed by law and intended for the promotion of societal welfare.138 At the same time, they must be compatible with the nature of authors’ moral and material interests—namely the protection of the personal link between authors and their intellectual works—and their role in enabling authors to achieve an adequate standard of living.139 For example, the State may have a framework allowing the unauthorised reproduction of intellectual works in formats specifically accessible to people with visual disabilities. This limitation however, may entitle authors to compensatory measures.140
Moreover, the protection of authors’ human rights to freedom of expression and property are also subject to limitations. Pursuant to Article 19(3) of the ICCPR, authors’ freedom of expression could be subject to limitations prescribed by law that are necessary for the respect of the rights of the others, or for the protection of national security, public order, public health or morals.141 Further, paragraph 2 of Article 17 of the UDHR impliedly allows deprivation of property in certain circumstances by prohibiting the arbitrary deprivation of property.
Equally, users’ human rights have their own limitations. General Comment No. 21 acknowledges that sometimes limiting the human right to participate in culture might be necessary.142 As with all other limitations on ESCR, such limitations must satisfy the requirements of Article 4 of the ICESCR: that the limitation must be prescribed by law, targeting a legitimate objective, compatible with the nature of the limited rights, and necessary for the promotion of the general welfare in the community.143 An example of such limitations is the exclusive authors’ rights provided in copyright statutes which may impose limitations on how users enjoy their rights to access, use, and share culture. Users’ rights under freedom of expression are also subject to limitations by virtue of Article 19(3) of the ICCPR.144 Finally, their rights to education can be subject to limitations by virtue of Article 4 of the ICESCR.145 Practically however, the scarcity of financial resources is a serious limitation on the human right to education in general.146
The non-absolute nature of authors’ and users’ human rights is necessary to give effect to the meaning of balance in the implementation of these rights. Balance can take place only where the rights involved in the relationship are limited. For instance, when interpreting Article 3 of the ECHR on freedom from torture — a non-derogable freedom under the ICCPR147 — the ECtHR refused to balance this absolute freedom with the public interest in national security. Specifically, in case of Saadi v Italy,148 the ECtHR held that the assessment of the risk one imposes on a given community is irrelevant when the extradition of this person risks subjecting him or her to torture.149
The non-absolute nature of authors’ and users’ human rights is what mandates and allows the balance between these rights. The limited nature of authors’ and users’ human rights creates a marginal but vital zone surrounding their existence and allowing them to both lean toward and on each other without causing any of them to fall. In other words, the role of the limited nature of authors’ and users’ human rights in achieving their balanced implementation is like the small openings between the cogs of two meshing gears that allow them to be joined together and rotate in a synchronised manner. In this capacity, and thus in striking the balance, ‘the private interests of authors should not be unduly favoured and the public interest in enjoying broad access to their productions should be given due consideration’.150 This formula reflects the ‘intrinsically linked’ relationship between authors’ international human rights and users’ international human rights, which is a relationship ‘at the same time mutually reinforcing and reciprocally limitative’.151
As implemented in international copyright law, authors’ and users’ human rights are limited. Users’ human rights are limited in relation to copyrighted works for the duration of copyright protection and authors’ human rights are limited by the exceptions and limitations to give some room for users’ human rights. However, to strike a balance between authors’ and users’ human rights under the umbrella of international copyright law it is not enough to establish copyright representing authors’ human rights, on the one hand, and exceptions and limitations representing users’ human rights, on the other hand. The degree of the mutual and reciprocal limitation between these rights greatly matters. It must be reasonable enough to enable both rights to have their due effect without one right defeating the purpose of the other.
In contrast, the management of authors’ human rights and users’ human rights in international copyright law fails to preserve a reasonable degree of mutual limitation between both sets of rights. One reason for this imbalance is the important, yet controversial, principle of minimum standards of protection. Under this principle, members of the Berne Convention must not provide copyright protection below the standards prescribed in the Convention,152 except where the protection concerns works originating from their own nationals.153 The Berne Convention’s minimum standards include the term of protection, the subject matter protected by copyright, and the exclusive rights given to authors. Generally, the Berne Convention obliges Member States to provide copyright protection for a term that does not go below the life of the author plus fifty years after the author’s death,154 to provide copyright protection to ‘every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression […]’,155 and to provide authors with a bundle of exclusive economic rights and moral rights.156 The minimum standard approach of the Berne Convention has influenced TRIPS (except with respect to moral rights),157 the WCT,158 and ACTA.159
Giving due consideration to the limited nature of both authors’ and users’ human rights requires reconsideration of the minimum standard of protection principle in international copyright law. For example, the current term of copyright protection in the Berne Convention was added at the Brussels Revision of the Convention (1948) as a minimum right.160 In setting this term, the drafters intended to strike ‘a fair balance between the interests of authors and the need for society to have free access to the cultural heritage which last far longer than those who contributed to it’.161 Admittedly, the underlying logic behind the term of protection in the Berne Convention reflects awareness of users’ human rights. The term-limited protection requires sending to the public domain every work whose protection has expired. Nonetheless, a term of protection that exceeds the author’s lifetime automatically encroaches upon users’ human rights, since in international human rights law authors’ material interests only last for the life of the author.162 Thus, upon the author’s death all and full users’ human rights are supposed to become due, and any extension of protection thereafter is lacking a human rights foundation and must not infringe on users’ human rights.
Furthermore, the length of protection in the Berne Convention does not necessarily contribute to providing an adequate standard of living for authors,163 which is the essence of authors’ material rights in international human rights law.164 That is, users’ human rights to access, use and share intellectual works might be postponed in favour of other rights not necessarily having a human rights character, such as when authors’ rights are assigned to corporations. It is true that the protection of the latter rights is important to redeem authors’ material interests in international human rights law, but a protection for the life of the author plus fifty years is excessive given the impact it has on users’ human rights to access, use and share culture. Herein, the useful role of copyright in fulfilling authors’ material interests might not outweigh its negative impact on users’ enjoyment of knowledge and the incentive to create further intellectual works: ‘knowledge is a hard commodity to appropriate, and it is socially inefficient to appropriate it’.165 Copyright can be a useful vehicle to implement authors’ material interests, but it must not turn from being a shield against free riding into a sword undermining users’ ability to become (or continue being) authors.166 The current term of protection means that users will not be able to fully and freely enjoy intellectual works produced during their lifetime as protection may span up to three generations.167 Moreover, States are allowed to provide a longer term of protection, and many of them offer terms of protection that last for the life of the author plus seventy years after his or her death.168 Such terms render protection for copyrighted works produced today de facto unlimited for contemporary generations.169
In addition to the limited nature of authors’ and users’ human rights, another element of the balance between these two sets of human rights is the absence of any hierarchy between them.
2. No Hierarchy between Rights
In national legal systems, legal rules exist in a normative hierarchy where constitutional rules take precedence over primary and secondary legal rules, such as statutes and regulations.170 In many jurisdictions, nonetheless, there is no hierarchy between the different individuals’ human rights and freedoms within the constitution; all human rights and freedoms have the same legal weight. For example, the Supreme Court of Canada has warned against a ‘hierarchical approach’ toward interpreting the rights and freedoms of the Charter of Rights and Freedoms,171 and emphasised that attempts to give some of its rights and freedoms ‘superior status in a “hierarchy” of rights must be rejected.’172 In a similar vein, the United States Supreme Court found no ‘distinction between, or hierarchy among, constitutional rights’173 since there was ‘no principled basis on which to create a hierarchy of constitutional values’.174 However, in Europe, the acceptability of this doctrine is less clear. In Germany, for instance, there is a debate among scholars regarding the existence of a hierarchy of rights in the Basic Law of Germany.175
In international law, there is a disagreement on whether a hierarchy exists among its norms.176 This disagreement extends to cover the issue of whether a hierarchy exists within international human rights norms.177 Nonetheless, the closest hierarchy debate relevant to balancing authors’ and users’ rights regarding intellectual works concerns the debate on assigning superiority to civil and political rights (CPR) over ESCR. As explained earlier, authors’ moral and material interests and users’ rights to culture, arts and science under Article 15 of the ICESCR and Article 27 of the UDHR are ESCR. At the same time, authors and users can protect the same rights relying on their CPR, such as freedom of expression, by means of the interdependence and indivisibility of human rights’ principles. This means that a tension between authors and users can result from the exercise of human rights that do not have the same nature: for example, ESCR of users versus CPR of authors. For balance to be possible in this case, it is important to reject any attempt to present one of these categories of human rights as superior to the other.
The attempts to give CPR superiority over ESCR date back to the time when the United Nations Commission on Human Rights took on the mission of drafting a single international legal instrument codifying and elaborating the aspirations of the UDHR.178 During this process, the ideological divide between the Western Bloc and the Eastern Bloc sparked the debate on the weight of both sets of human rights and, thus, the appropriateness of codifying them in one instrument.179 Specifically, the United States, leading the Western Bloc, viewed ESCR as a socialist notion and was reluctant to adopt a treaty that would put them on an equal footing with CPR.180 The argument was that ESCR were not justifiable and non-justiciable (that is, not legally enforceable rights by courts),181 but instead aspirations that required States to take positive measures to have them implemented, such as committing the allocation of economic resources.182 In contrast, the United States argued that CPR were ‘enforceable, justifiable, absolutely fundamental, and, therefore, immediately applicable’.183 The Western countries emphasised that these rights were negative rights — liberties — that did not require the intervention of the State for their achievement but merely required it to refrain from interfering with them.184
The Soviet Union led the other view, supported by socialist States and third-world countries, arguing that ESCR were as important as CPR and that their protection was an essential requirement for the practical achievement of CPR.185
At the end, the Commission on Human Rights drafted two independent treaties: the ICESCR and ICCPR.186 Following this split, throughout the twentieth century, States emphasised CPR while overlooking ESCR.187
The premise of a hierarchy between CPR and ESCR is flawed.188 First, in its interpretation of the nature of States’ obligations under the ICESCR in General Comment No. 3, the CESCR has explained that ‘while the [ICESCR] provides for progressive realisation and acknowledges the constraints due to the limits of available resources, it also imposes various obligations which are of immediate effect’.189 The CESCR has identified the ‘undertaking to guarantee [without discrimination]’ and the obligation to ‘take steps’ as examples of obligations of immediate effect, which have ‘particular importance’ in interpreting the nature of States’ obligations under the ICESCR.190 Secondly, the CESCR has explained that the ICESCR imposes upon every Member State ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’.191 For instance, a State in which most individuals lack access to necessary foodstuff, basic health care, housing, and very basic education is not compliant with its obligations under the ICESCR.192 The State cannot discharge its obligation of taking steps to the maximum of its available resources unless it shows that ‘every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations’.193
Thirdly, although the implementation of ESCR may require some greater allocation of resources, the implementation of many CPR — such as the voting right — involves an economic dimension, as they require governmental action and financial expenditure for their implementation.194 Also, several CPR are interlinked with ESCR.195 For instance, the right to education is said to be ‘adjunct’ or ‘part of’ political rights.196 This is why establishing a hierarchy between CPR and ESCR was rejected by the majority of the drafters of the UDHR, who viewed all the rights and freedoms of the declaration to have been ‘cut of the same moral cloth’197 and treated the UDHR as a ‘kingdom of human rights [where] there are no second-class citizens.’198 Therefore, it is not surprising to see that all Western democracies, except the United States, endorse the legality and importance of ESCR.199
Similarly, in Africa, Asia, and Latin America, many national constitutions protect ESCR.200 In Canada, on the other hand, the Charter of Rights and Freedoms does not explicitly protect ESCR; however, bound by the Supreme Court of Canada’s jurisprudence,201 the Government of Canada has informed the CESCR that section 7 of the Charter of Rights and Freedoms202 ‘may be interpreted to include the rights protected under the [ICESCR]’203 and is ‘guaranteeing that people are not to be deprived of basic necessities’.204 In return, the CESCR ‘note[d] with satisfaction that the Federal Government has acknowledged, in line with the interpretation adopted by the Supreme Court, that section 7 […] guarantees the basic necessities of life, in accordance with [ICESCR]’.205
Finally, with respect to the non-justiciability of ESCR, in General Comment No. 9,206 the CESCR has explained that ‘there is no … [ICESCR] right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions’.207 Moreover, as aptly argued by Alston, international human rights law obligations are connected with the notions of ‘implementation’ and ‘supervision’ rather than ‘justiciability’ or ‘enforceability’; 208 this means that once States have obliged themselves to accept international obligations with regard to individuals’ rights and freedoms, they shall give effect to these obligations.209 In addition, available international mechanisms for supervising States’ compliance with their obligations under the ICESCR are sufficient to characterise those obligations as enforceable.210 Further, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights211 significantly boosts the implementation of the ICESCR.212 By virtue of this protocol, the CESCR has jurisdiction to receive complaints from individuals and communities alleging that States have violated their ESCR.213 Further, at the regional level, a number of human rights instruments have established considerable development with respect to the implementation of ESCR by entitling individuals to launch complaints against infringement of their ESCR.214 Nationally, the emergence of a body of national case law giving effect to ESCR has proven the fallacy of the non-justiciability argument against ESCR.215
As affirmed by the World Conference on Human Rights, ‘[a]ll human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.’216 By the same token, neither authors nor users of intellectual works can claim superiority over one another in human rights law by relying on a hierarchy between CPR and ESCR. Also, lawmakers and courts should avoid any hierarchy of this nature when balancing the human rights of authors and users.
Rejecting a hierarchy between human rights, regardless of its basis, would expose a number of points of imbalance in international copyright law. For example, international copyright law incorporates a number of provisions that address users’ human rights, such as the provision excluding news of the day from copyright protection.217 This is a mandatory provision and meant, inter alia, to address users’ human right to freedom of expression,218 a civil and political right. On the other hand, international copyright law addresses the human right to education — an economic, social and cultural right — in an optional provision relating to permitting the utilisation of copyrighted works by way of illustration in teaching activities.219 The mandatory protection of freedom of expression versus the optional protection of the human right to education creates a hierarchy between those human rights that is inconsistent with the requirements of balance in international human rights law. This hierarchy echoes the historical discrimination against ESCR in favour of CPR.
Furthermore, whereas the Berne Convention and the WCT protect moral rights, TRIPS has dropped moral rights from its protection.220 In this regard, TRIPS creates a hierarchy between authors’ economic rights and moral rights. Given the importance of moral rights to the human author’s dignity, and given the trade environment of TRIPS, one can further argue that TRIPS creates a hierarchy between the rights of the human authors and the economic rights of corporations, as a category of rights holders. As Gervais aptly described, by overlooking moral rights, TRIPS ‘split the copyright coin’.221 As a result, it ‘may have weakened the intrinsic equilibrium of copyright and, hence, the “power to convince” that copyright has traditionally enjoyed’.222 Overlooking moral rights in TRIPS has tilted its balance toward the economic interests of copyright holders at the expense of authors’ moral interests.223 Given the declining importance of the Berne Convention as an independent international copyright instrument — outside the scope of its incorporation in TRIPS224 — one may reasonably infer a decline of the status of authors’ moral rights in international copyright law, which is injurious to the relation between this regime and international human rights law. Additionally, to the extent one finds in moral rights a right of users to receive authentic and accurate works, excluding moral rights from protection creates a hierarchy between the economic interests of rights holders and this implicit users’ right.
Moreover, in international copyright law, the principle of automatic protection, which provides that the existence and exercise of copyright must not be subject to any formalities,225 is central for the protection of authors’ human rights. It confirms that copyright implements, rather than creates, authors’ moral and material interests. On the other hand, this principle may impede the enjoyment of users’ human rights and, hence, it creates a hierarchy. For instance, the automatic protection, along with the long term of copyright protection, is responsible for the ‘orphan works’226 problem.227 Automatic protection requires users to assume that every intellectual work is protected even when it does not have an official registration record identifying its copyright owner and other relevant information, such as its date of publication.228 Fearing liability, users are hesitant to use works that might still be covered by copyright, and their search for the owner of the work to obtain permission to use it will usually involve extra time and financial expenses.229 Although the simplest solution to this problem may be through a compulsory registration regime, that would violate the Berne Convention and TRIPS.230
Thus, for example, the US Copyright Office’s Report on Orphan Works has suggested a statutory regime that only limits the responsibility of users of orphan works who, despite their good faith search, fail to locate the owners of such works and who, if possible, provide proper attribution to the author and copyright owner.231
In Canada, the issue of orphan works is solved by section 77 of the Copyright Act,232 which authorises the Copyright Board to issue non-exclusive licenses to use orphan works.
Europe has also developed a system allowing public libraries, educational institutions, museums, archives, and similar public interest establishments to make available to the public and reproduce orphan works.233
The rejection of a hierarchy between human rights is consistent with the holistic view of international human rights, which is another important rule of balance.
3. Holistic View of Rights
A holistic approach to statutory interpretation means that courts will interpret a particular provision in a statute in light of ‘the whole statute (or statutes on the same subject) and the objects and policy of the law, as indicated by its various provisions, and give to it such a construction as will carry into execution the will of the Legislature, as thus ascertained, according to its true intent and meaning’.234 This ‘is the most realistic in view of the fact that a legislature passes judgment upon the act as an entity, not giving one portion of the act any greater authority than another’.235 Regarding human rights, this approach will ensure that ‘one right is not privileged at the expense of another’,236 and its applicability to the interpretation of international human rights law is in harmony with the fact that all human rights are equal, interdependent, indivisible, and necessary for the respect of the dignity of human beings.
To achieve balance in the implementation of authors’ and users’ human rights, through legislation or adjudication, lawmakers and courts must interpret the content and boundaries of authors’ and users’ human rights in light of each other and in light of the whole corpus of international human rights. That is, each human right must not prejudice the content of any other human right. For instance, the protection of authors’ human rights must not prejudice others’ human rights to privacy or freedom of expression and the right to participate in culture must not impair authors’ human right to an adequate standard of living. The CESCR was clear that authors’ moral and material interests ‘cannot be isolated from the other rights recognized in the Covenant’,237 such as the human right to education, food, health, an adequate standard of living, and other human rights recognised in the ‘International Bill of Human Rights and other international and regional instruments […]’. 238 Therefore, every member of the ICESCR has a core obligation of immediate effect ‘to strike an adequate balance’ between the protection of authors’ moral and material interests and the protection of other ESCR.239
Since international copyright law creates some hierarchies between the human rights it regulates and has a low degree of limitation on copyright, it is inevitable that it will not be able to strike an appropriate balance between copyright and international human rights as a whole. For example, international copyright law does not have a specific exception or limitation that facilitates the role of archives and museums in the preservation of culture, it does not have a specific exception or limitation for libraries, and it does not include a mandatory first-sale doctrine that would protect the human right to property of purchasers of items embodying intellectual works. The situation of the human right to development240 in international copyright law is not more favourable. The balance between the interests of the developed countries in the protection and enforcement of copyright and the interests of the less developed countries in socio-economic development is one of the several forms of balance that international copyright law must strive to achieve.241 However, since international copyright law’s minimum standards of protection apply in developed and less developed countries alike, despite countries’ different socio-economic circumstances surrounding the creation and use of copyrighted works, these standards create a formal, not substantive, balance.242 This means that international copyright law adopts a one-sided approach toward the protection of authors’ rights that may overlook other similarly important human rights. This is a serious concern linked to the overall fairness of international copyright law and should be a trigger to introduce a ‘principle of substantive equality’243 that renders the protection of copyright in international copyright law to be considerate of the development gap between countries.244 Professor Margaret Chon notes that the TRIPS regime focuses only on the economic aspect of development by emphasising ‘utility maximization’245 and overlooks the social, cultural and political aspects of development.246 Thus, she argues that ‘[t]he net result is an intellectual property balance that has become increasingly lopsided in favor of producer interests, possibly to the detriment of overall global social welfare and clearly to the detriment of the most vulnerable populations’.247 TRIPS addresses the importance of access to, and use of, intellectual property for the development of less developed countries in Articles 7 and 8. These articles, however, according to the WTO panel in Canada—Patent Protection of Pharmaceutical Products, still await their appropriate interpretation.248 These two provisions are not mandatory; thus, their effect in creating substantive equality between the protection and enforcement of copyright and less developed countries’ socio-economic interests is quite limited.249
Reaching a verdict on whether balance in international copyright law is compliant with the balance that international human rights law requires between authors’ and users’ human rights is a work in progress. International copyright law has yet to clarify the meaning and content of balance under its different instruments. Furthermore, the High Commissioner of Human Rights and the CESCR have not distinguished the ambiguous balance in international copyright law from balance in international human rights law. Therefore, international human rights law bodies and jurists should look at authors’ and users’ human rights — and the balance between them — through a human rights lens. A human rights balance between authors’ and users’ human rights means that the implementation and/or adjudication of these human rights must adhere to the following rules: both sets of human rights are reciprocally limited; they do not exist in a hierarchy; and their proper interpretation occurs only in light of the interrelation and indivisibility of all international human rights. Moreover, international copyright law bodies and jurists should carefully consider this human rights framework of balance in any future attempt to clarify the meaning and content of balance in international copyright law or to measure the compliance of the latter’s norms with international human rights law. Unless international copyright law adheres to balance within its meaning in international human rights law, the similarity between the balance that international copyright law claims to create between the different interests under its umbrella and the balance required under international human right law between authors’ and users’ human rights — and between these two sets of human rights and the whole body of human rights — remains one of terminology rather than ideology.
The author declares that they have no competing interests.